Can the speech rights of government employees be restricted?

January 25th, 2017, 8:19am by Sam Wang

Federal agencies have come under pressure to stop communicating about the science of climate change. The National Park Service has recently deleted social-media communications about carbon dioxide, which is the main cause of global warming.

However, it turns out that there are First Amendment issues. A public employee is allowed to speak publicly or share information with the media, if that information is not secret or classified, and if that person speaks as a citizen and not as a representative of the government. Amanda Marcotte reports.

Update: commenter Pechmerle, a lawyer, points out that the Supreme Court has, in a series of leading cases, laid out a balancing test between the government’s legitimate interests in confidentiality vs. the employee’s right to speak out. It’s a three-part test:

(1) The speech is a matter of “public concern,”
(2) The employee spoke as a private citizen and not a public employee (i.e., speech is not pursuant to “official duties”), and
(3) The employee’s speech interest outweighs the agency’s interest in efficiency and effectiveness.

Note particularly the word “outweighs” in factor (3). Such balancing tests get fleshed out, over time, slowly and painfully, as lower court cases face specific fact situations. The good news is that the ACLU has already announced that it stands ready to assist any federal employee faced with improper suppression of his/her speech.

14 Comments so far ↓

It may be against the law, but there is no reason to think it will stop Trump and his cronies from silencing any gov’t agencies. The only option is to sue, facing the radical partisan Trump judges he will appoint.

The sad thing is, most rational people saw this kind of thing coming a mile away and tried to warn apathetic “both sides are the same” non-voters that Trump is a unique threat to our institutions and democracy. They were stubborn and didn’t vote or voted 3rd party. Well they are about to find out, at the detriment to this country that “both sides are the same” is an extremely dangerous mindset that will truly test our institutions against a fascist tyrant getting elected with one party government backing him.

I am not a huge fan of the author’s tone regarding the use of NDAs. That is common in almost every industry to protect proprietary information. There is nothing sinister there.

However, it definitely remains to be seen whether Trump is trying to use the Harper model or if this is temporary. I want to think that what Harper did will not work in the USA due to the speech protections discussed in the article, but I am no student of law.

“However, it turns out that the law is clear: a public employee is allowed to speak publicly or share information with the media, if that information is not secret or classified. ” This is an overbroad reading of Marcotte’s article (visitors here should go read it), and quite an overbroad reading of the legal commentators she quotes.

The Supreme Court has, in a series of leading cases, set out a three-part test for whether a public employee’s unauthorized communications to the public (even outside the areas of national security and classified information) are protected by the First Amendment:
(1) The speech is a matter of “public concern,”
(2) The employee spoke as a private citizen and not a public employee (i.e.,
speech is not pursuant to “official duties”), and
(3) The employee’s speech interest outweighs the agency’s interest in efficiency and effectiveness.

Does that sound clear? Note particularly the word “outweighs” in factor (3). That means a balancing test of the government’s legitimate interests in confidentiality vs. the employee’s right to speak out. The Supreme Court has put out balancing tests in many areas of law (including First Amendment cases), and the short point about such balancing tests is that they leave matters far from clear as to what is permitted and what is not. Such balancing tests get fleshed out, over time, slowly and painfully, as lower court cases face specific fact situations. So the true state of affairs is that there are signposts, but they don’t always give clear direction in particular factual situations.

As an example of what has been going on, consider the U.S. Dept. of Agriculture’s Agricultural Research Service (ARS). The ARS normally is the source for a great deal of information directed to the public, on research in ag matters, press releases on ag policies, etc. The ag area, one may also note, involves the impacts of climate change, and so is politically sensitive. On Mon. Jan. 23 Buzzfeed reported that it had obtained an internal memo, apparently issued Jan. 19: “’Starting immediately and until further notice, ARS will not release any public-facing documents,” Sharon Drumm, chief of staff for ARS, wrote in a department-wide email shared with BuzzFeed News. ‘This includes, but is not limited to, news releases, photos, fact sheets, news feeds, and social media content,’ she added.”

But by Tues. Jan. 24, the fact that this had become public, and drew an adverse outcry from many scientists from outside the agency, apparently caused people at the top at the USDA to recognize that such a blanket ban on public comments by agency employees is unconstitutional, and definitely to recognize that it plays very poorly politically. This gag order was therefore “rescinded,” and is to be replaced by a more nuanced policy at ARS on the scope of public comment by agency employees.

The result in the short-term is uncertainty about what agency employees can and can’t speak about. The challenge, which a number of non-governmental organizations will be taking on, is to maintain heightened sensitivity to the administration’s plain desire to reduce transparency.

There are also special statutory protections for agency employees to communicate concerns to Congress or its members concerning fraud, waste, or misconduct in the executive branch. These statutes back to the progressive era of the early 1900’s, though revised along the way. Here is a letter from two House ranking democrats on Committees to the (new) Whitehouse counsel underlining concerns that these protections not be infringed by the Trump administration’s attempted gag orders..

The constitutional court cases are consistent with this, holding that whistle-blowers who are publicizing, either to the public or to Congress, those kinds of information are exercising a right of the public to know of such misdoings, and employees who provide such information are protected by the First Amendment.

Whistle-blowing is of course distinct from the present public anxiety that policy differences, and esp. the factual bases underlying them, not be kept hidden behind an executive branch curtain of confidentiality. This latter kind of employee disclosure leads to closer calls in the court cases.

This is very simple. Every American has the right to speak or publish whatever they wish to on their own time and from their own personal (social) media or public platforms they establish.

Employees of organizations are restricted from using organizational resources and time on the clock if their employee feels that use is in conflict with their job or the mission of the company that employs them. This is for the very simple reason that the resources of your employer and your time at work while being paid are not your personal property to do with as you wish.

For Civil Servants, official social media accounts are owned by the US Government, not by individual government workers. Use of them by Civil Servants is at the discretion of Civil Service management and ultimately the political appointees running our government. Further, holding press conferences on government property and while recording paid time on a timesheet is only something that can be done with the authorization of government managers in charge of media contacts, otherwise that person is engaging in the misuse of government/taxpayer resources.

Civil Service employees are given secure tenure in their job precisely because they are not supposed to be hired and fired due to their personal politics and in return they promise not to bring their personal politics into their work but to professionally carry out the directions of our elected and appointed government officials who oversee their work.

When people employed in the Civil Service no longer feel they can abide by this bargain, the honorable thing to do is to resign. That is what my dad did 26 years ago, when he worked for the Agricultural Research Service as a PhD scientist. He grew tired of the direction and type of research work USDA management wanted him to undertake and the constraints on research he wanted to pursue, so he resigned and took a new job with a University where he was free to pursue his own interests and cut a deal with a private research lab where they would allow him to use their lab equipment for free and in return they would have first commercial rights to any useful information he uncovered through his research.

My mother was also a State Civil Service employee. She decided she like the job she was given enough that she worked through multiple administrations of her state by both parties, even though she disagreed personally with some of their policy directions or positions. Her job included writing policy speeches for governors who she personally loathed and whose policies she though would fail. Nevertheless, she subsumed those feelings and executed the tasks given to her by her managers. This is what the Civil Service is supposed to do – work professionally and lend their expertise to carrying out the mission direction set by our elected officials, who gain a mandate to govern through victory in our constitutional electoral process.

The childish and unprofessional behavior of certain government employees claiming “censorship” at not being able to tweet from government accounts and while being paid by our government to do other work whatever they wish is beyond ridiculous. Even more so, those workers who would presume to use government resources for partisan purposes of embarrassing elected officials. Imagine what would ensue if rogue elements of the State Department decided to send out tweets in support of the Russian annexation of Crimea, or if employees of the Department of Education started tweeting in support of policies espoused in Murray and Hernnstein’s “The Bell Curve”. Don’t think such things are impossible, they aren’t.

This is one of many examples of the administrations attack on Science. We see it happening with the vaccine debate as well. How can the scientific community rally together to overshadow the alternative facts of the administration?